This is basically why I think that any sort of quibbling about “the source-code,” hence Copyright in the conventional sense, is really missing the point. The real point that ought to be explored, by a legislature, is basically: why the duplication was done. What business advantage it conferred upon the duplicator, and which it in so doing denied from the original author of the copied material. You didn’t make that very-consciously exact copy just because one day the thought popped into your brain that it would be a really cool idea. You did it because someone else did it first. The only reason why you would choose to build that railroad in that particular location is because the Little Red Hen did it first. But you’re not the Little Red Hen. You didn’t offer to join forces with the red bird; your work adds absolutely nothing to it. You didn’t incur any of the business-development costs that the Hen incurred, but you are effectively cheating her out of the opportunity to recoup them during the understandably-limited period of time over which she would reasonably seek to amortize them.
In the actual railroad days, massive amounts of duplicate track were in fact built for the singular purpose of forcing the original railroad to buy them out. (See, e.g.: http://www.angrybearblog.com/2009/05/there-is-difference-between-then-and.html.) It was an under-handed business practice then as it is today. In fact, the US Government had to intervene to compel companies who were vying for the first transcontinental railroad route to stop building tracks parallel to one another to the same destination. There was “gobs of Federal money and land” to be had, and perhaps the various companies hoped no one was paying attention: for a time, no one was.
Patent law does not apply well, because the idea isn’t new and novel. Copyright law does not apply well, because the duplicate arguably (and obviously) isn’t the original. But the existence of the duplicate does unfairly sweep the wind from the sails of the original ship, and it frankly appears (to me...) to exist for no other credible purpose. That’s not fair. But IMHO/INAL neither patent nor copyright law really is an appropriate foundation to work from. The crux of the “offense” here, I think, is not a matter of precisely what was done, but rather, of precisely why and when it was done, and for what (under-handed) reason it was done at precisely in this chosen way at precisely this chosen time. It was done to steal candy from the baby.
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